Contract Blunders and Craziness

If you have selling real estate for any period of time you have seen contracts that just make you scratch your head. Sometimes you see simple errors such as missing signatures, wrong addresses and misspelled names. Other times you see outright scary stuff.

When I write contracts I live by a simple rule that a wise instructor once taught me. If you write anything in the contract that takes more than a sentence or two you are practicing law.

A couple of months ago I had a run in with a broker-owner who gave me the craziest counter-offer I had ever seen. He put four paragraphs of truly bizarre language in the special provisions that talked about the source, type, etc. of my client's funds. He also included language that my clients would make up any difference between the appraisal and the sell price. The funniest part was this was property had been on the market much longer than the norm.

I spoke to the agent and let him know that I am recommending that my clients reject this counter - offer because of his language. He then preceded to council me on how to speak to my clients and I need to tell my clients that there are times they just need to take a chance. I thanked him for his input and let him know that the only way they would sign it was when Waikiki gets a blizzard. I also shared with him the following:

Me: I have never seen any language like that before in a contract.

Seller's Agent: That is standard language!

Me: I not only have never seen this language before, but I past this contract around to several very experience agents. Not one had ever seen anything like it and not one would allow their client to sign it.

Seller's Agent: You are telling me you have never seen this type of language?!

Me: (Thinking it was time to cut this off) I have never seen this in an accepted offer! This is how I see it. You have a seller who is motivated; I have a qualified buyer who wants to buy this home. You just have to answer one question. Are willing to step out of the way and let this sale happen?

He did and the sale closed. I have since received referrals from my buyer's who love the home.

Many real estate companies are coming out with their company addendums. I received an offer on a home I was selling that included a company addendum from a new real estate company I had not heard of.

I read their addendum.

I made copies and past it around the agents and brokers in my office.

Boy did we get a laugh. It was three pages long. It went line item by line item of the DROA with their definitions of what each part of the DROA meant. It wasn't bad enough that the three pages were trying to change the meaning of the contract provisions. That alone would have been enough to kill it. It was worse than that. Apparently who ever drew this up document had English as a second language and didn't know how to use spell or grammar check. It had more typos and grammatical errors than you could count. We countered the offer to remove the addendum and otherwise accept their offer. It was accepted and we closed on that property.

There were a couple of common elements in these two transactions.

In both cases real estate agents attempted to practice law.

Neither were lawyers and neither had a clue about what they were doing.

And as you may have guessed I had to do a lot of extra work in those transactions.

I am sure you have good examples of messy contracts you have seen in the course of your travels.

Randy Prothero is well established as an expert in working with military / VA clients and first time home buyers. His home seller's (listing) campaign is one of the most aggressive marketing programs in the area.

Based out of Mililani, Hawaii. Randy services the island of Oahu (Honolulu County) Performs mediations and ombudsman services for the Board of Realtors. To improve overall professionalism in his area Randy also offers classes for real estate agents.

excellent points-it's so tempting to want to practice law with language...but no matter how experience we are, we ain't lawyers and heaven knows i don't want to go up against them if it goes south! the best point you made was that we have to GET OUT OF THE WAY of a sale sometimes. you're not protecting anyone, acting like that agent!

I never ceased to be amazed by what can be written into an offer or how quickly an agent can mess up a transaction.

As to forms that are company specific...Our office policy when it comes to Broker addendums and disclosure forms for a specific company is to decline to sign anything not required by the California Association of Realtors. Technically they can't require you to sign their forms..

Those company addendums kill me! I have run into at least 3 different ones. There is no way a lawyer wrote those addendums. In all cases, my buyers did not accept the company addendum (the DROA covers everything already) and all of my transactions closed successfully. If companies feel as though the DROA needs to be amemded, they should send their input to the local board of realtors and suggest changes.

Renee - I am amazed that some of these companies would insert themselves to that level in a transaction. Those who also do mortgages and other services seem to have the longest.

Carl - Thank you

Leigh - Good point he was just somehow feeding his ego. It also fed the round file.

Kaye - I had a transaction where the agent from the other side did not include their company addendum. After we were in escrow she called me up kind of desperate. She needed to get us to sign it ASAP. Her company refuses to pay the agents commission if it is not signed. My client signed, but it was not required. The other agent was good to work with and we didn't want to cause her the grief.

Great job with that dialogue. Here in Northern NJ, attorney review would boot any odd stuff like that out usually, but I still always like to preface any opinion with "You need to check with your attorney on that one"

Sean - We don't have attorneys review out contracts usually. Our forms have been developed by a team of attorneys for the Association of Realtors and they are constantly upgraded to conform to any new laws. We do require a brokers review and signature on all contracts.

2. Blanks in Area's Like Possesion, Financing, Agency Just Misc. Irregularities that I now need to address to protect my clients best interest.

3. Counters with basically the same terms as in the original contracts.

4. Agents that no matter how many times the Fax it or How many different Fax Machines they go to, It just comes across with lines or white areas with no print. Forcing you to have them either deliver or I actually countered and stated Seller needed a clean legible signed copy to review to acknowledge and agree to before we start escrow.

You know most everything we need is already in the contract and there really is no reason to complicate the transaction.

That is HILARIOUS! I love when I get addendums like that. Normally, I ask just one question to the other agent... "What is the objective are you are trying to achieve?" Probably more than half the time, that question is met with extended silence during which I am SURE that the other agent is reading THEIR OWN ADDENDUM and attempting to even understand it for themselves. You gotta love this business!

That is a scary thought in Arizona. I know TX attorneys that are agents as well and they are some of the most "get in the way of the deal" people you would ever want to see. Half the time the language is obscure. (If the party of the first part engages the party of the second part...WAIT...who's on first?) I try to keep my contracts as clean as possible.

occasionally i will get a contract where the closing date is before the mortgage commitment date. i use to try to explain to the agent involved why this was incorrect but i must admit that i have now given up.

usually there are 2 agents involved. i've often wondered how the listing agent explained this to the seller?

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